31:
391:
presentation of evidence in the form of documents and witnesses. Although evidentiary hearings are generally available as a means to assist the arbitral tribunal in deciding contested factual issues, arbitration rules do not usually require them and leave the means of decided disputed factual issues to the discretion of the tribunal. Many decisions of arbitral tribunals are made without any hearing at all.
149:. Depending on their establishing statutes or treaties, these kind of institutions can be capable of supervising the appointment of arbitration commissions in one country or on an international scale. This type of arbitration avoids the need for parties to involve local courts and procedures in the event of disagreement over the appointment, replacement, or authority of any or all of the arbitrators.
429:
The duties of a tribunal will be determined by a combination of the provisions of the arbitration agreement and by the procedural laws which apply in the seat of the arbitration. The extent to which the laws of the seat of the arbitration permit "party autonomy" (the ability of the parties to set out
570:
Specialised arbitration organizations have been formed in order to settle disputes in the matter of specialised issues, they work in only a very limited field but are highly specialised in the work they do. For this purpose they have made a special rules, procedures and regulations which they follow
308:
Most legal systems provide that, in default of agreement, a new arbitrator shall be appointed using the provision for appointments which applied to the original arbitrator that has vacated office; the tribunal itself (once reconstituted) should determine whether, and if so, to what extent, previous
252:
In most legal systems the parties are free to specify in what circumstances the appointment of an arbitrator may be revoked. In default, most legal systems provide either that (i) the parties to the dispute must act jointly to remove an arbitrator, or (ii) the other members of the arbitral tribunal
161:
The parties are generally free to determine their own procedure for appointing the arbitrator or arbitrators, including the procedure for the selection of an umpire or chairperson. If the parties decline to specify the mode for selecting the arbitrators, then the relevant legal system will usually
332:
of the winning party, and this may include the arbitrator's fees. This does not affect the joint and several liability referred to above, but it does mean that the winning party may maintain a separate action against the losing party for the unpaid costs, or to be reimbursed for arbitrator's fees
317:
The parties may make provision for the arbitrator's fees (although in some jurisdictions, whether the parties are agreeing to submit an existing dispute to arbitration, they may not provide that each party bears its own costs). However, the position may be different between, on the one hand, as
223:
presidential function as the tribunal member who sets the agenda. Where a member of the tribunal is an umpire, they usually do not exercise any influence on proceedings, unless the other arbitrators are unable to agree — in such cases, then the umpire steps in and makes the decision alone.
222:
Where the tribunal consists of an odd number of arbitrators, one of them may be designated as the umpire or chairperson. The selection of title carries some significance. When an arbitrator is "chairperson", then they will not usually exercise any special or additional powers, and merely have a
265:
if they are unwilling to proceed with the arbitration. Where the arbitrator becomes aware of facts that might be seen to affect his or her impartiality, they are often under a duty to resign. The parties are generally free to agree with the arbitrator what should happen with respect to (i) the
231:
In some legal systems, it used to be common for each party to the dispute to appoint an arbitrator and for those two arbitrators to appoint a third arbitrator (who may or may not be called an umpire). However, the two arbitrators appointed by the parties to the dispute would essentially act as
213:
Normally a well drafted arbitration clause will also make provision for where a party to the dispute seeks to cause delay by refusing to make or agree an appointment. Often this will allow the "non-defaulting" party to appoint a sole arbitrator and for the arbitration to proceed on that basis.
92:
The parties to agree on arbitration are usually free to determine the number and composition of the arbitral tribunal. Many jurisdictions have laws with general rulings in arbitration, they differ as to how many arbitrators should constitute the tribunal if there is no agreement. In some legal
390:
An "arbitration hearing" can be either procedural or evidentiary. As in court systems, a "procedural hearing" focuses exclusively on how the proceedings are to be conducted. An "evidentiary hearing" is the equivalent to what in the courts of many countries would be called a trial, with the
113:
arbitration proceedings are those in which the arbitrators are appointed by the parties without a supervising institution, relying instead on the rules that have been agreed upon by the parties and/or procedural law and courts of the place of arbitration to resolve any differences over the
89:). Some scholars have suggested that the ideal composition of an arbitration commission should include at least also one professional in the field of the disputed situation, in cases that involve questions of asset or damages valuation for instance an economist.
281:
Unless the parties have otherwise provided, the death of a party does not usually revoke the appointment of any arbitrator appointed by the deceased, and any agreement relating to the appointment is enforceable in the usual way against the
734:(adopted by various countries around the world), the default number is three (Article 10(2)). However, some countries have provided that the default number is one (see for example, section 15(2) of the Arbitration Act 1996 of the
513:
Provisions relating to appeals vary widely between different jurisdictions, but most legal systems recognise that the right to appeal (or, technically, the right to seek to set aside) an award in an arbitration should be limited.
465:
Matters of procedure are normally determined either by the law of the seat of the arbitration, or by the tribunal itself under its own inherent jurisdiction (depending on national law). Procedural matters normally include:
349:
this point was thought to have been left open, but in most jurisdictions it is accepted that arbitrators should enjoy immunity provided that they act in good faith in the same manner (and for much the same reasons) as
402:. Witness statements represent the testimony a witness would give if called to testify, and on which the witness is subject to questioning by the arbitral tribunal and, at times, cross examination by the other party.
437:
to act fairly and impartially between the parties, and to allow each party a reasonable opportunity to put their case and to deal with the case of their opponent (sometimes shortened to: complying with the rules of
196:
the two so appointed may appoint an umpire at any time after they themselves are appointed and shall do so before any substantive hearing or forthwith if they cannot agree on a matter relating to the arbitration.
571:
during the proceedings of arbitration. These institutions prove very useful in the cases where a very deep and specialised knowledge is needed in settlement, which in turn can be cost effective and time saving.
253:
must act to remove the arbitrator, and/or (iii) the court must act to remove an arbitrator. Most legal systems reserve a power to the court to remove arbitrators who are unfit to act, or are not impartial.
166:
If the tribunal is to consist of a sole arbitrator, the parties shall jointly appoint the arbitrator not later than (for example) 28 days after service of a request in writing by either party to do so.
417:
and conditions, some organizations may also provide that disputes shall be arbitrated without an oral hearing and upon documentary evidence only, an example being certain trade associations, such as
562:
In some jurisdictions it is also possible to appeal against an award on a point of law, however, such appeals normally require either the permission of the other parties, or the leave of the court.
747:
For example, all arbitral awards issued by the ICC have to be reviewed internally before being handed down, which helps certainty and improves the quality of awards, but leads to delay and expense.
457:
noted that where an arbitrator recognises that a party in arbitration has missed a point that could be argued, "fairness requires the arbitrator to raise it so that the party can deal with it".
731:
638:
146:
202:
Most arbitration clauses will provide a nominated person or body to select a sole arbitrator if the parties are unable to agree (for example, the
President of the relevant jurisdiction's
950:
236:
for the party who appointed them, and the umpire would effectively act as a sole arbitrator. Such systems can lead to difficulty, as other countries may be reluctant to enforce an
153:
Permanent arbitration committees tend to have their own rules and procedures, and tend to be more formal. They also tend to be more expensive, and, for procedural reasons, slower.
210:, or a relevant professional organisation). In default of such a provision, where the parties are unable to agree, an application for an appointment is usually made to the court.
117:
institutional arbitration proceedings are those in which the arbitrators are appointed under the supervision of professional bodies providing arbitration services, such as the
756:
See for example, Article 11(2) of the UNCITRAL Model Law on
International Commercial Arbitration and section 16(1) of the Arbitration Act 1996 of the United Kingdom or The
97:
which provides for an even number of arbitrators is understood to imply that the appointed arbitrators will select an additional arbitrator as a chairperson, to avoid
769:
See for example, Article 11(3) of the UNCITRAL Model Law on
International Commercial Arbitration and section 18 of the Arbitration Act 1996 of the United Kingdom.
341:
It is generally accepted that an arbitrator is not liable for anything done or omitted to be done in the discharge of his or her duties as an arbitrator unless
886:
See for example, Article 16 of the UNCITRAL Model Law on
International Commercial Arbitration and section 30 of the Arbitration Act 1996 of the United Kingdom.
826:
See for example, Article 15 of the UNCITRAL Model Law on
International Commercial Arbitration and section 27 of the Arbitration Act 1996 of the United Kingdom.
122:
660:
955:
633:
207:
130:
35:
394:
Where it may be appropriate to do so, arbitral tribunals can make decisions solely upon documentary evidence, which may or may not be accompanied by
582:
193:
each party shall appoint one arbitrator not later than (for example) 14 days after service of a request in writing by either party to do so, and
176:
each party shall appoint one arbitrator not later than (for example) 14 days after service of a request in writing by either party to do so, and
266:
arbitrator's fees, and (ii) any liability of the arbitrator (such as wasted costs), if the arbitrator should resign, with or without cause.
861:
See for example, section 29 of the
Arbitration Act 1996 of the United Kingdom and section 28 of the International Arbitration Act 1974 of
304:
what effect, if any, the arbitrator's ceasing to hold office has on any appointment or order made by that arbitrator (alone or jointly)
618:
445:
to adopt procedures suitable to the circumstances of the particular case, so as to provide a fair means for resolution of the dispute.
628:
138:
405:
Specific types of arbitration, for example, may rely exclusively on documents to decide disputes, such as in the growing field of
382:
The doctrine, although
European in origin, has been recognised at common law, and has now been widely codified into national law.
603:
418:
118:
362:
In most legal systems, the arbitral tribunal is able to rule upon its own jurisdiction (often referred to as the doctrine of "
244:
or independence. The standards for enforcing such awards are set out in the New York
Convention, as interpreted by local law.
261:
It is generally accepted that one cannot force a person to continue as an arbitrator against their will, and arbitrators may
321:
Although the parties may provide differently in the appointment of the arbitrator, the usual rule is that the parties are
802:
322:
98:
835:
In some jurisdictions this is mandatory, see for example section 28 of the
Arbitration Act 1996 of the United Kingdom
325:
for the arbitrator's fees. If the arbitrator is not paid, then they may sue either or both parties for unpaid fees.
757:
162:
provide a default selection process. Characteristically, appointments will usually be made on the following basis:
81:. Members selected to serve on an arbitration panel are typically professionals with expertise in both law and in
623:
406:
524:
there was a serious irregularity on the part of the tribunal. Examples of serious irregularities may include:
553:
failure to comply with the requirements for the form of the award (e.g. in writing or in a specific language);
960:
283:
527:
failure of the tribunal to act in accordance with the rules of natural justice, or allowing a fair hearing;
778:
Often reinforced by the law, see for example, section 17 of the
Arbitration Act 1996 of the United Kingdom
650:
680:
433:
However, in almost all countries the tribunal owes several non-derogable duties. These will normally be:
670:
533:
failure of the tribunal to conduct proceedings in accordance with the procedure agreed by the parties;
328:
In many jurisdictions, after making the award, the tribunal will order that the losing party pays the
294:
If a vacancy arises (through resignation or death, or otherwise) then the parties are free to agree:
126:
714:
414:
675:
454:
364:
318:
between the arbitrators and the parties, and on the other hand, as between the parties themselves.
309:
proceedings stand; and the appointments and orders made by the previous arbitrator are unaffected.
179:
the two so appointed shall forthwith appoint a third arbitrator as the chairperson of the tribunal.
94:
613:
395:
351:
333:
that the winning party has been forced to pay, but which the losing party was ordered to pay.
237:
368:" in international law). This enables the arbitral tribunal to determine for itself whether:
895:
See for example Article 18 of the UNCITRAL Model Law on International Commercial Arbitration
482:
439:
203:
918:
735:
30:
944:
690:
547:
493:
104:
Arbitral tribunals are usually constituted (appointed) in two types of proceedings:
17:
788:
521:
that the tribunal did not have substantive jurisdiction to determine the matter; or
241:
121:(which conducts international proceedings through its New York–based division, the
608:
450:
430:
their own procedures and regulations) determines the interplay between the two.
329:
262:
74:
66:
62:
655:
346:
536:
failure of the tribunal to deal with all the issues put to it for resolution;
530:
the tribunal exceeding its powers (other than by exceeding its jurisdiction);
934:
See for example section 69 of the Arbitration Act 1996 of the United Kingdom
862:
399:
375:
whether the tribunal has been properly constituted under applicable law, and
342:
114:
appointment, replacement, or authority of any or all of the arbitrators; and
86:
925:, paragraph 42, delivered on 17 October 2007, accessed on 10 September 2024
875:
Christopher Brown Ltd v Genossenschaft Osterreichischer Waldbesitzer R GmbH
274:
The authority of an arbitrator is personal, and an appointment ceases upon
661:
UNCITRAL Model Law on International Commercial Arbitration (English text)
489:
471:
378:
what matters are to be determined by the arbitration under the agreement.
233:
301:
whether, and if so, to what extent, the previous proceedings shall stand
905:
240:
where two of the three "arbitrators" are clearly unable to demonstrate
665:
685:
499:
134:
109:
78:
719:
Valuation in Investor-State Arbitration: Toward a More Exact Science
206:, or a recognised professional arbitration organisation such as the
543:
410:
275:
147:
International Centre for Settlement of Investment Disputes (ICSID)
142:
715:
https://www.criterioneconomics.com/economists-as-arbitrators.html
73:, or there may be two or more arbitrators, which might include a
186:
If the tribunal is to consist of two arbitrators and an umpire:
908:
these are codified in section 33 of the Arbitration Act 1996
732:
UNCITRAL Model Law on International Commercial Arbitration
639:
UNCITRAL Model Law on International Commercial Arbitration
65:
which is convened and sits to resolve a dispute by way of
354:, and some jurisdictions have clarified this by statute.
27:
Panel convened to resolve a dispute by way of arbitration
676:
China Arbitration online and China Arbitration Database
539:
uncertainty or ambiguity as to the effect of the award;
919:
Bandwidth Shipping Corporation v Intaari EWCA Civ 998
517:
Usually such challenges are made on one of two bases:
666:
Maritime Arbitration Association of the United States
590:
Maritime Arbitration Association of the United States
917:
England and Wales Court of Appeal (Civil Division),
298:
whether, and if so, how, the vacancy shall be filled
787:Although in some cases the chairperson will have a
546:, or otherwise being procured in a way contrary to
169:
If the tribunal is to consist of three arbitrators:
556:irregularities in the conduct of the proceedings.
791:if the tribunal is unable to agree on a matter.
681:Tribunal Arbitral de Miguel Ângelo Raposo Graça
951:International arbitration courts and tribunals
8:
634:London Court of International Arbitration
36:London Court of International Arbitration
581:Centre for Effective Dispute Resolution
504:the appointment of experts and assessors
29:
702:
587:German Maritime Arbitration Association
574:Such specialised institutions include:
713:, 30 EMORY INT'L L. REV. 2105 (2016),
593:Tokyo Maritime Arbitration Association
578:Arbitration and Mediation Center, WIPO
721:, 30 BERKELEY J. INT'L L. 196 (2012).
656:Arbitration Act 1996 (United Kingdom)
470:mode of submitting (and challenging)
398:, which in the US are referred to as
7:
619:Chartered Institute of Arbitrators
409:. As part of their organizational
372:an arbitration agreement is valid,
25:
629:International Chamber of Commerce
145:or, for investment disputes, the
956:Arbitration courts and tribunals
921:, case regarding the cargo ship
604:American Arbitration Association
119:American Arbitration Association
69:. The tribunal may consist of a
485:of documents and other evidence
1:
758:Federal Arbitration Act (USA)
476:time and place of the hearing
542:the award being procured by
323:jointly and severally liable
449:In a case arbitrated under
83:friendly dispute resolution
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711:Economists as Arbitrators
624:International arbitration
479:language and translations
407:online dispute resolution
691:Happ's Arbitration Links
671:The Arbitration Database
566:Specialised institutions
284:personal representatives
61:is a panel of unbiased
803:"New York Arbitration"
218:Chairperson and umpire
51:arbitration commission
38:
717:; Joshua B. Simmons,
55:arbitration committee
33:
923:Magdalena Oldendorff
846:Sutcliffe v Thackrah
686:Arbitration in Italy
227:Arbitrator advocates
127:Fair Work Commission
47:arbitration tribunal
18:Arbitration tribunal
365:Kompetenz-Kompetenz
59:arbitration council
709:J. Gregory Sidak,
396:witness statements
337:Immunity from suit
125:), the Australian
95:arbitration clause
39:
850:Arenson v Aresnon
614:Arbitration award
313:Fees and expenses
290:Filling a vacancy
286:of the deceased.
238:arbitration award
43:arbitral tribunal
16:(Redirected from
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848:AC 727 and
808:. CMS Legal
609:Arbitration
451:English law
330:legal costs
257:Resignation
157:Appointment
75:chairperson
67:arbitration
945:Categories
730:Under the
651:ICCWBO.org
483:disclosure
400:affidavits
347:common law
863:Australia
697:Footnotes
490:pleadings
461:Procedure
455:Waller LJ
343:bad faith
234:advocates
101:arising.
87:mediation
598:See also
472:evidence
99:deadlock
906:England
509:Appeals
498:use of
492:and/or
488:use of
442:"); and
386:Hearing
248:Removal
49:, also
877:1 QB 8
852:AC 405
812:21 May
425:Duties
411:bylaws
352:judges
263:resign
137:, the
135:London
129:, the
110:ad hoc
79:umpire
77:or an
806:(PDF)
544:fraud
419:GAFTA
276:death
270:Death
143:Paris
873:See
844:See
814:2012
800:See
583:CEDR
208:LCIA
131:LCIA
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141:in
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