The right to challenge one or more arbitrators is a fundamental part of the arbitral due process. The challenge procedure itself depends on whether the applicable rules are institutional or ad hoc. If the arbitration is conducted under an institutional framework, the challenge procedure will normally be handled by the institution in accordance with its rules. However, if the arbitration is ad hoc, a challenge will primarily be subject to the agreement of the parties, which can be problematic if the parties failed to agree on a challenge procedure and will be examined in light of the revised 2013 UNCITRAL Arbitration Rules (the UNCITRAL Rules). With this in mind, the role of the appointing authority may become crucial in challenge proceedings and raises complex issues when parties opt for ad hoc arbitration or exclude the involvement of arbitral institutions.

The role of appointing authorities

The role of the appointing authorities is elaborated upon in Articles 8-10, 13-14 and 41 of the UNCITRAL Rules. These provisions note that the role of the appointing authority is to assist the resolution of deadlocks related to the appointment, challenge or replacements of arbitrators, and to review the fees and expenses of the same. In this respect, Justice Croft of the Supreme Court of Victoria, Australia highlights that these amendments brought by the UNCITRAL Rules will “leave parties less exposed to tactical delaying of proceedings, by parties refusing to nominate arbitrators, progress challenges or failing to attend to the replacement of arbitrators”.

Jul-Sep 2018 issue

Chartered Institute of Arbitrators (CIArb)