Part II Arbitral Procedures to Control the Selection and Conduct of Arbitrators, Preliminary Material, Introduction
David D Caron, Lee M Caplan
Following the initiation of the arbitral process, a crucial task facing the parties is the constitution of the tribunal.1 Setting up the tribunal can be one of the most difficult processes in an arbitration. The membership of the panel is very important because so much of what occurs later in the arbitration, especially crucial decision-making, depends upon the knowledge, skill and interpersonal dynamics of the arbitrators chosen. The process may be frustrating. Parties may find themselves avidly studying the backgrounds of several possible arbitrators, often to discover that the one desired is not available because of conflicts or scheduling issues. Even more trying is when a reluctant party cleverly opposes constitution of the panel at every turn. A great deal of effort has been exerted in both interstate and private international arbitration to ensure that arbitral panels can always be constituted while simultaneously respecting the rights of the parties in the process.
This Part examines the success of such efforts in terms of the 2010 UNCITRAL Rules. The experience of the Iran–US Claims Tribunal and investor–state arbitration tribunals is particularly significant. The constitution of the tribunal is an area of arbitral procedure where until quite recently practice was difficult to ascertain. This problem has been mitigated in the case of the Tribunal and, in some cases, investor–state arbitration through the publication of challenge decisions which have generated a growing body of case law. The scarcity of commentary is also due to the fact that, although appointments are routinely made, actions such as the challenge of an arbitrator have been rare. While the Iran–U.S. Claims Tribunal remains far and away the leading source of practice in the area under the Rules, having been involved in sixteen challenges, the five publicly available challenge decisions from the field of investor–state arbitration also usefully add to corpus of practice.
The initial constitution of a tribunal involves three distinct stages: (1) the appointment of an arbitrator, (2) the disclosure by that arbitrator, to all parties not involved in his appointment, of any circumstances which might give rise to justified doubts as to his impartiality, and (3) objection to that arbitrator by any parties who believe the circumstances disclosed (p. 146) warrant a challenge. At every step, the 2010 UNCITRAL Rules prefer that the parties mutually agree on the composition of the panel. However, the Rules also place limits on how long any party must wait for mutual agreement. Finally, behind all of these time limits is a third party, the “appointing authority” who will, if necessary, make impartial appointments or decide upon challenges.
The following chapters examine all these stages and the central, yet often neglected, role of the appointing authority. Specifically, in light of the experience of the Iran–US Claims Tribunal and other tribunals, including investor–state arbitration tribunals, the approach of the UNCITRAL Rules to formation of the arbitral panel is evaluated.