APPOINTING ARBITRATORS: COMMERCIAL AND TECHNICAL EXPERTISE
According to Redfern & Hunter: “International disputes are too varied and too numerous for it to be sensible to identify any general rule as to the kind of person who should be chosen to act as an arbitrator. Parties must make up their own minds as to the qualifications that they require in an arbitrator.”
The outset of an arbitration can feel like a frenetic period with a number of significant and consequential decisions to be made as deadlines rush up toward you. Foremost among these decisions is the nomination and appointment of the arbitrators themselves – a panel of experienced professionals who will be with you through the life of the arbitration, eventually deciding your case, the award and the allocation of costs.
Given that arbitrations are not typically appealable, the make-up of the tribunal and the expertise of its constituent members can be a key strategic factor during the arbitration and its ultimate outcome. Making the right choice is an important first test for you and your legal team.
If it is your company’s first time initiating arbitral proceedings or you find yourself on the receiving-end of a counterparty’s request for arbitration – the formal document initiating the arbitration – then the idea of picking the panel that will hear your case can feel alien compared to High Court proceedings.
However, the private nature of an arbitration means that it is within the parties’ power to shape its conduct and procedures in accordance with the governing rules and the arbitration agreement itself. Indeed, it is the arbitration agreement (the collection of clauses in the underlying contract, under which the parties agree to conduct their disputes via arbitration) that is the first port of call in the nomination and appointment of arbitrators.
Jul-Sep 2022 issue
Slaughter and May