Arbitration Arbitrator Selection and Tribunal Formation 1 — Questions and Answers
Question 1: What is the IBA Guidelines on Conflicts of Interest in International Arbitration designed to address?
- Fees charged by arbitrators in international cases
- Standards for arbitrator disclosure and disqualification based on potential conflicts of interest (Correct answer)
- Procedures for challenging institutional decisions on arbitrator appointments
- Confidentiality obligations of arbitrators after proceedings end
Correct answer: Standards for arbitrator disclosure and disqualification based on potential conflicts of interest
The IBA Guidelines provide a framework of disclosure obligations and standards for when an arbitrator should be disqualified due to conflicts of interest, using color-coded lists (Red, Orange, Green).
Question 2: What does it mean for an arbitrator to be 'independent' in the context of arbitration?
- The arbitrator has no prior legal experience with either party
- There is no relationship between the arbitrator and the parties that could affect the arbitrator's impartiality (Correct answer)
- The arbitrator is not affiliated with any arbitral institution
- The arbitrator is self-employed rather than part of a law firm
Correct answer: There is no relationship between the arbitrator and the parties that could affect the arbitrator's impartiality
Independence means the arbitrator has no financial, professional, or personal relationship with a party that could compromise the arbitrator's ability to decide impartially.
Question 3: What is the process for challenging an arbitrator under UNCITRAL Rules?
- A party may challenge at any time, even after the award is issued
- A challenge must be made within 15 days of becoming aware of circumstances justifying the challenge (Correct answer)
- Challenges are decided by a domestic court only
- An arbitrator can only be challenged once per case
Correct answer: A challenge must be made within 15 days of becoming aware of circumstances justifying the challenge
Under UNCITRAL Rules, a challenge must be notified within 15 days of learning of the relevant circumstances, with a statement of reasons; the challenge is decided by agreement or an appointing authority.
Question 4: What does a 'sole arbitrator' appointment process typically involve under AAA rules?
- AAA always appoints the sole arbitrator without party input
- Parties exchange lists of arbitrator candidates and rank them; AAA appoints based on mutual acceptability (Correct answer)
- The claimant selects the sole arbitrator unilaterally
- The sole arbitrator is always a retired federal judge
Correct answer: Parties exchange lists of arbitrator candidates and rank them; AAA appoints based on mutual acceptability
Under AAA rules, parties receive a list of arbitrator candidates, strike unacceptable names, and rank the remaining candidates; AAA appoints from those mutually acceptable.
Question 5: What is a 'party-appointed arbitrator' and what obligations does that arbitrator have?
- A party-appointed arbitrator is an advocate for the appointing party with no neutrality requirement
- A party-appointed arbitrator is appointed by a party but must still be independent and impartial (Correct answer)
- Party-appointed arbitrators are only used in labor arbitration
- A party-appointed arbitrator votes last to break ties
Correct answer: A party-appointed arbitrator is appointed by a party but must still be independent and impartial
Even party-appointed arbitrators must be independent and impartial under international standards and most institutional rules; they are not advocates for the appointing party.
Question 6: What is the role of an 'appointing authority' in ad hoc international arbitration?
- To enforce the arbitral award in domestic courts
- To appoint arbitrators when parties cannot agree or a party fails to nominate, ensuring the tribunal is constituted (Correct answer)
- To review the merits of an award before it becomes final
- To establish the seat of arbitration if the parties fail to do so
Correct answer: To appoint arbitrators when parties cannot agree or a party fails to nominate, ensuring the tribunal is constituted
An appointing authority (such as the PCA or a designated institution) steps in to appoint arbitrators in ad hoc proceedings when parties deadlock or a party defaults on its nomination obligation.
Arbitration Arbitrator Selection and Tribunal Formation 1
What is the IBA Guidelines on Conflicts of Interest in International Arbitration designed to address?