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Parties should determine the Number of Arbitrators
This selection has an impact on the costs, duration and quality of
arbitration. The parties are free to determine the number of arbitrators.
Both Articles 8 and 9 of the UNCITRAL Rules, and Article 12(1) of
the ICC Rules, provide that the parties can appoint one or three arbi-
trators.
If the parties fail to make this determination, the arbitral institution
(if selected) will decide upon the arbitrators with regard to the com-
plexity and amount of the case. In ad hoc arbitrations, the arbitration
rules (if selected) will provide the number of the arbitrators to be
appointed. If the parties do not select rules for arbitration, it is impor-
tant to make this determination in the arbitration agreement. The par-
ties should set the process for selection and replacement of arbitrators.
Generally, institutional and ad hoc arbitration rules regulate the meth-
ods to select and replace arbitrators.
The parties may elect to adopt another method, such as selecting
the presiding arbitrator. It is important that the parties use language
similar to the arbitration rules. In ad hoc arbitrations, there is no
appointing authority. Therefore, it is important that the parties make
such determination.
If the parties fail to designate the appointing authority, the courts
at the place of arbitration may make this determination. Pursuant to the
UNCITRAL Rules Article 6, the Secretary General of the Permanent
Court of Arbitration at The Hague will designate the appointing
authority, if the parties fail to do so. An appointing authority can be a
court, institution, trade or professional association, or other neutral
entity.
Parties should determine the Language of the Arbitration
The parties must be careful when selecting multiple languages.
Multi-lingual arbitrations can be difficult in practice. It may be a chal-
lenge to identify arbitrators who can practice in all of the selected lan-
guages. Translations and interpretations will create additional costs
and delays. Both Article 19.1 of the UNCITRAL Rules, and Article 20
of the ICC Rules, provide that in the absence of an agreement, the arbi-
tral tribunal shall determine the language of arbitration.
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NEWSLETTER 2015