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Part II Arbitral Procedures To Control The Selection And Conduct Of Arbitrators, Ch.4 The Number And Selection Of Arbitrators

David D. Caron, Lee M. Caplan, Matti Pellonpää

From: The UNCITRAL Arbitration Rules: A Commentary (1st Edition)

David D. Caron, Matti Pellonpää, Lee M. Caplan

A newer edition of The UNCITRAL Arbitration Rules is available. Latest edition (2 ed.)
Next Edition: 2nd Edition Latest edition (2 ed.)
Content type:
Book content
Product:
International Commercial Arbitration [ICMA]
Series:
Oxford Commentaries on International Law
Published in print:
23 March 2006
ISBN:
9780199297597

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

(p. 169) Chapter 4  The Number And Selection Of Arbitrators

  1. 1  Introduction 169

  2. 2  The Number of Arbitrators–Article 5 170

    1. A  Text of the UNCITRAL Rule 170

    2. B  Commentary 170

  3. 3  Appointment of the Sole Arbitrator–Article 6 173

    1. A  Text of the UNCITRAL Rule 173

    2. B  Commentary 174

    3. C  Extracts from the Practice of the Iran-US Claims Tribunal 176

  4. 4  Appointment of a Three–Person Panel–Article 7 178

    1. A  Text of the UNCITRAL Rule 178

    2. B  Commentary 179

      1. (1)  The Right of Each Party to Appoint an Arbitrator 179

      2. (2)  The Appointment of the Presiding Arbitrator 180

    3. C  Extracts from the Practice of Ad Hoc Tribunals 181

  5. 5  Appointment by the Appointing Authority–Article 8 182

    1. A  Text of the UNCITRAL Rule 182

    2. B  Commentary 182

1  Introduction

Appointment of arbitrators under the UNCITRAL Rules presents two topics for discussion: the proper number of arbitrators–a sole arbitrator or a panel of three–and the process by which the arbitrator or arbitrators is appointed.1

(p. 170) 2  The Number of Arbitrators–Article 5

A  Text of the UNCITRAL Rule2

Article 5 of the UNCITRAL Rules provides:

If the parties have not previously agreed on the number of arbitrators (i.e. one or three), and if within fifteen days after the receipt by the respondent of the notice of arbitration the parties have not agreed that there shall be only one arbitrator, three arbitrators shall be appointed.

B  Commentary

The primary issue raised during the drafting of Article 5 was whether a sole arbitrator or a panel of three arbitrators should be appointed in the absence of agreement by the parties.3 A review of this debate illuminates many of the positions that might be raised during the negotiation of an arbitration clause in a contract.

(p. 171) Proponents of the sole arbitrator approach argued that: (1) the arbitration would be less expensive if only one arbitrator was used;4 (2) such expense may be of great significance when the “parties [are] of different economic strength, [and] the weaker party would be at an economic disadvantage if the stronger party insisted on a three–member tribunal”;5 (3) “[i]t was not for the arbitrators to act [as is “traditional and statistical” of the party–appointed arbitrators] as lawyers for the parties [and a] single arbitrator would therefore be preferable”;6 and (4) the arbitral proceeding would be speedier.7

Supporters of the three–member panel contended that: (1) customary practice endorsed the appointment of three arbitrators;8 (2) “the presence of three arbitrators was necessary to ensure that the tribunal possessed a sufficient degree of competence and expertise”;9 and (3) the two party–appointed arbitrators often “brought to the tribunal a special knowledge of the commercial law and practice of the country to which the party who nominated him belonged.”10 In the end, the three–member alternative was adopted by UNCITRAL,11 a choice that has worked well in the experience of both Iranian and American arbitrators with the Iran-US Claims Tribunal and likely is also beneficial and politically wise in the case of NAFTA Chapter Eleven arbitrations.

A three–member panel has been preferable for the Tribunal for exactly the (p. 172) reasons stated by the members of the UNCITRAL Drafting Committee: Iranian and American arbitrators often found themselves, for example, explaining aspects of their national laws. Similarly, in NAFTA Chapter Eleven arbitrations, the national laws of Canada, Mexico and the United States are likely involved.12

A further reason not mentioned in the UNCITRAL records is more psychological: the presence of a colleague sets up a dialogue that yields deliberations that are necessarily more refined and exacting. It is all too easy for a sole arbitrator to focus upon one particular aspect of a complex case and for his views on that aspect to not benefit from discussion. It is true that national trial courts often are presided over by one judge, but such courts allow appeals unlike arbitral decisions. This psychological factor supports the three–member panel position, but to a large degree does not require that the two be party–appointed. The practice of party–appointed arbitrators is discussed further below. Suffice to say here that there is significant precedent for the UNCITRAL Rules to include party–appointed arbitrators as part of the panel. Moreover, party–appointed arbitrators strive to ensure that the position of the party that appointed them is fully considered, which increases the thoroughness, if not also the intensity, of the dialogue.

Pragmatically, a three–member panel is also desirable because it increases the probability of the tribunal possessing the required degree of competence. Persons who dealt with appointments at the Tribunal universally found it difficult to predict how competent a particular arbitrator would be. The competence of arbitrators may be surprising even when the reputation and personal history of the arbitrator and the personal views of others who have appeared before him are known.13

Given that “experience shows that at least one of the parties will insist on a three–member panel,” the approach of the UNCITRAL Rules means that a panel of three will virtually always be used.14

(p. 173) 3  Appointment of the Sole Arbitrator–Article 6

A  Text of the UNCITRAL Rule15

Article 6 of the UNCITRAL Rules provides:

  1. 1.  If a sole arbitrator is to be appointed, either party may propose to the other:

    1. (a)  The names of one or more persons, one of whom would serve as the sole arbitrator; and

    2. (b)  If no appointing authority has been agreed upon by the parties, the name or names of one or more institutions or persons, one of whom would serve as appointing authority.

  2. 2.  If within thirty days after receipt by a party of a proposal made in accordance with paragraph 1 the parties have not reached agreement on the choice of a sole arbitrator, the sole arbitrator shall be appointed by the appointing authority agreed upon by the parties. If no appointing authority has been agreed upon by the parties, or if the appointing authority agreed upon refuses to act or fails to appoint the arbitrator within sixty days of the receipt of a party's request therefor, either party may request the Secretary–General of the Permanent Court of Arbitration at The Hague to designate an appointing authority.

  3. 3.  The appointing authority shall, at the request of one of the parties, appoint the sole arbitrator as promptly as possible. In making the appointment the appointing authority shall use the following list–procedure, unless both parties agree that the list–procedure should not be used or unless the appointing authority determines in its discretion that the use of the list–procedure is not appropriate for the case:

    1. (a)  At the request of one of the parties the appointing authority shall communicate to both parties an identical list containing at least three names;

    2. (b)  Within fifteen days after the receipt of this list, each party may return the list to the appointing authority after having deleted the name or names to which he objects and numbered the remaining names on the list in the order of his preference;

    3. (c)  After the expiration of the above period of time the appointing authority shall appoint the sole arbitrator from among the (p. 174) names approved on the lists returned to it and in accordance with the order of preference indicated by the parties;

    4. (d)  If for any reason the appointment cannot be made according to this procedure, the appointing authority may exercise its discretion in appointing the sole arbitrator.

  4. 4.  In making the appointment, the appointing authority shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and shall take into account as well the advisability of appointing an arbitrator of a nationality other than the nationalities of the parties.

B  Commentary

Where the parties have agreed that a sole arbitrator will preside,16 Article 6(1) of the UNCITRAL Rules provides that “either party may propose to the other…[t]he names of one or more persons, one of whom would serve as the sole arbitrator…” The rules place no limits on whom the parties may agree to appoint. The preliminary draft of this Article considered by UNCITRAL provided that the sole arbitrator “shall be of a nationality other than the nationality of the parties.”17 The provision was “designed to ensure the neutrality of the sole arbitrator.”18 This limitation was deleted, however, because it was viewed as an unnecessary limitation on “the autonomy of the parties” that might lead to the disqualification of “the most competent person.”19

Thirty days after receipt by either party of a proposal by the other party as to the naming of a sole arbitrator, if no agreement has been reached, Article 6(2) authorizes either party to request a third party (“the appointing authority”) to appoint the sole arbitrator.

The appointing authority “is necessarily also competent to examine first of all whether the [pre]conditions [necessary] for an appointment have been (p. 175) satisfied.”20 As a former President of the International Court of Justice, Sir Muhammad Zafrulla Khan, writes, the appointing authority “has a duty to satisfy himself, first that the parties agreed to give to him a certain part in the constitution of an arbitral tribunal, and secondly, that the agreed conditions of form for him to play his part are satisfied.”21 It is not his duty to go beyond considerations of form, however. In particular, it is not the duty of the appointing authority to consider the admissibility of the dispute under the arbitration agreement invoked. Such limited review is justified in Khan's view because “he is not acting on behalf of the two parties, on the basis of the view of the legal situation which they share…[rather] [h]e is acting on behalf of the party which has requested him to act and on the basis of that party's view of the legal situation.”22 In this sense, the task delegated in advance by the parties to the appointing authority, given certain stipulated conditions of form, is to make a selection on behalf of a party or the parties. The right to appoint is with the parties; they merely delegate the task of choosing or selecting the particular person to a third party.

When requested by a party, the appointing authority shall under Article 6(3) appoint a sole arbitrator “as promptly as possible.” This Article stresses use by the appointing authority of a “list–procedure” to perform the appointment.23 This procedure consists of:

  1. (a)  the appointing authority communicating to both parties an identical list containing at least three names;24

  2. (b)  the parties returning the lists to the appointing authority within 15 days after respective receipt, with each party having deleted the name or names objected to and numbered the remaining names on the list in order of preference; and

  3. (c)  the appointing authority selecting after the 15–day period a sole arbitrator from the approved names on the lists returned to it in accordance with the order of preference indicated.

(p. 176) Appointment of a sole arbitrator over the opposition of a party therefore would require approximately 60 days under the Rules and closer to 90 to 120 days in practice.

If the appointment cannot be made according to the list procedure for any reason, then “the appointing authority may exercise its discretion in appointing the sole arbitrator.” The appointing authority in making an appointment shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and shall take into account as well the advisability of appointing an arbitrator of a nationality other than that of the parties.25

C  Extracts from the Practice of the Iran-US Claims Tribunal

  1. 1.  The documents lodged

  2. (a)  In a letter of 1 January 1982 (with enclosure) addressed to Mr. N. Mangård, a copy of which was sent to the Agent of the United States of America and the Members of the Iran-United States Claims Tribunal, the Agent of the Islamic Republic of Iran stated that Mr. Mangård was disqualified from acting as a “neutral” arbitrator for the Iran-United States Claims Tribunal and chairman of its number 3 chamber.

  3. (b)  In a letter of 8 January 1982 addressed to the Secretary–General of the Permanent Court of Arbitration, the Agent of the United States did not agree to the challenge, and requested the Secretary–General to designate an Appointing Authority.

  4. (e)  The Secretary–General of the Permanent Court of Arbitration designated Us to be the Appointing Authority in a letter of 13 January 1982.

  5. (f)  In his letter of 15 January 1982 to the Secretary–General of the Permanent Court of Arbitration the Agent of the Islamic Republic of Iran submitted that the contents of his letter referred to above under (a) cannot be described as a “challenge” within the meaning of the UNCITRAL Rules, and furthermore that the procedure set out in Article 6 of the UNCITRAL Rules was not observed when the Appointing Authority was designated, whereas it should have been.

  6. (g)  From the contents of his letter of 19 January 1982 to the Secretary–General of the Permanent Court of Arbitration, it is evident that the (p. 177) Agent of the United States contests the view of the Agent of the Islamic Republic of Iran contained in the letter referred to above under (f).

  7. (h)  In a letter of 21 January 1982 to the Agent of the Islamic Republic of Iran, copies of which were sent to the President of the Iran-United States Claims Tribunal, the Agent of the United States and Ourselves, the Secretary–General of the Permanent Court of Arbitration confirmed Our designation as Appointing Authority.

  8. 3.3  The combined effect of [the Claims Settlement Declaration and Articles 6 and 10–12 of the UNCITRAL Rules], which to date have not been amended either by the Parties or the Tribunal, is that the person designated as Appointing Authority by the Secretary–General of the Permanent Court of Arbitration at The Hague pursuant to Article 12(1)(c) in conjunction with Article 6 is empowered to interpret both the agreement referred to above under 3.1 and the UNCITRAL Rules, in so far as they are relevant to the matter instituted before him.

  9. 3.4  According to the documents lodged in the case, the Islamic Republic of Iran bases its assertion that We are not competent to hear the case instituted before Us, on the contention that the designation referred to above under 1(e) is not valid in law. This contention cannot be accepted as correct for the following reasons.

  10. 3.6  The contention that pursuant to the provisions of Article 12(1)(c), in conjunction with Article 6, of the UNCITRAL Rules, the Secretary–General of the Permanent Court of Arbitration at The Hague is not empowered to designate an Appointing Authority until the Parties have been unable to reach agreement on the designation by them in mutual consultation of an Appointing Authority is based on an incorrect interpretation of the provisions in question. The arrangement provided for in Article 12(1)(a) and (b) relates to cases in which the appointment of the challenged arbitrator was made by an Appointing Authority or, alternatively, in which an Appointing Authority was designated during the procedure leading to the appointment of the challenged arbitrator.

    Article 12 provides that in such cases the decision on the challenge shall be made by the Appointing Authority. The clear intention of (p. 178) this rule is to ensure that a speedy decision can be taken on the challenge.

    In the light of this, it must be assumed that the rule contained in Article 12(1)(c) is also intended to make it possible in the cases referred to therein to designate an Appointing Authority to decide on the challenge as quickly and as simply as possible.

    Therefore, the rule which Article 12(1)(c) contains to the effect that the designation of the Appointing Authority must be “in accordance with the procedure for designating an appointing authority as provided for in Article 6” has to be interpreted as meaning that except in cases in which the Parties have agreed upon an Appointing Authority in the context of the procedure relating to the appointment of an arbitrator, the Secretary–General of the Permanent Court of Arbitration at The Hague is empowered to designate an Appointing Authority to decide on a challenge, if he receives a request to that effect from one of the Parties.

    This interpretation is supported by the history of the proceedings leading to the adoption of the UNCITRAL Rules. At the conference which adopted the rules, a draft of Article 6 prepared by the Secretariat requiring that the Parties endeavour to reach agreement on the choice of an Appointing Authority, was rejected in favour of a Belgian proposal in which there was no requirement to seek agreement (UN Doc. A/CN.9/112; UN Doc. A/CN.9/112/Add. 1; UN Doc. A/CN.9/9/C.2/SR.3).

Decision of the Appointing Authority on Iran's Objections to Judge Mangård, 5 Mar 1982 at 1, 2, 7–9, reprinted in 1 Iran-US CTR 509–19 (1981–1982).

4  Appointment of a Three–Person Panel–Article 7

A  Text of the UNCITRAL Rule26

Article 7 of the UNCITRAL Rules provides:

  1. 1.  If three arbitrators are to be appointed, each party shall appoint one arbitrator. The two arbitrators thus appointed shall choose the third arbitrator who will act as the presiding arbitrator of the tribunal.

    2. (p. 179)

  2. 2.  If within thirty days after the receipt of a party's notification of the appointment of an arbitrator the other party has not notified the first party of the arbitrator he has appointed:

    1. (a)  The first party may request the appointing authority previously designated by the parties to appoint the second arbitrator; or

    2. (b)  If no such authority has been previously designated by the parties, or if the appointing authority previously designated refuses to act or fails to appoint the arbitrator within thirty days after receipt of a party's request therefor, the first party may request the Secretary–General of the Permanent Court of Arbitration at The Hague to designate the appointing authority. The first party may then request the appointing authority so designated to appoint the second arbitrator. In either case, the appointing authority may exercise its discretion in appointing the arbitrator.

  3. 3.  If within thirty days after the appointment of the second arbitrator the two arbitrators have not agreed on the choice of the presiding arbitrator, the presiding arbitrator shall be appointed by an appointing authority in the same way as a sole arbitrator would be appointed under article 6.

B  Commentary

(1)  The right of each party to appoint an arbitrator

Article 7(1) of the UNCITRAL Rules provides that when a three–person panel is to be appointed “each party shall appoint one arbitrator.”27 Except for the provision for challenge by the other party, the Rules specify no limits on this choice. Indeed, a party could even appoint a national of the opposing party's country.

In the past, parties have refused to exercise their rights to appoint a member of the panel.28 The UNCITRAL Rules therefore anticipate this possibility. Thirty days after a party receives notice of the other party's appointment of an arbitrator, the notified party's right to appoint its arbitrator, if it has not yet done so, continues only at the sufferance of the party who has appointed. When after the thirty days no appointment has been made by the other party, then the party who has appointed its arbitrator may request the appointing authority to appoint the opposing party's (p. 180) arbitrator. The appointing authority “may exercise its discretion” for such appointment.29

(2)  The appointment of the presiding arbitrator

The two party arbitrators, whether appointed by a party or by the appointing authority, “shall choose the third arbitrator who will act as presiding arbitrator of the tribunal.”30 Thirty days after the appointment of the second party arbitrator, whether such appointment is made by a party or by the appointing authority, if the two arbitrators have not agreed upon a presiding arbitrator, then the appointing authority shall appoint the presiding arbitrator in the same way it would appoint a sole arbitrator.31

It is important to note that the provision that the two party arbitrators chose the presiding arbitrator does not apply in the case of UNCITRAL arbitration under Chapter Eleven of the NAFTA. Rather, the drafters of the NAFTA expressly chose to modify this aspect of the UNCITRAL Rules. NAFTA Subchapter B, Article 1123 provides that the presiding arbitrator “shall be appointed by agreement of the disputing parties.” If agreement between the parties cannot be reached, the Secretary–General of ICSID, acting as appointing authority, appoints the presiding arbitrator from the ICSID Panel of Arbitrators, provided he or she is not a national of any of the parties.32

Outside of the NAFTA context where a different process applies, the ability of the party arbitrators to agree on a third arbitrator rests primarily on the good faith of the arbitrators. The Iran-US Claims Tribunal's party–appointed arbitrators were successful three times in reaching agreement: first in the initial selection of Judges Lagergren, Bellet and Mangård, second in the selection of Judges Briner and Virally and third in the selection of Judges Broms and Arangio–Ruiz.33 The first time benefited from the air of good will present at the inception of the Tribunal. The second followed Iran's internal renewal of its commitment to the Tribunal process, a renewal evidenced by its replacement of Judges Kashani and Shafeiei with Judges Mostafavi and (p. 181) Bahrami. In between these instances were failures at negotiation which led to the Appointing Authority's selection of Judges Riphagen and Böckstiegel. The third instance of successful negotiation was the agreement to appoint Judges Broms and Arangio–Ruiz. This success, and the subsequent failures in negotiation resulting in the Appointing Authority's selection of Judges Ruda and Skubiszewski, point to an additional factor possibly explaining the success or failure of such negotiations. In particular, negotiations are more likely to succeed when the party–appointed arbitrators have two, rather than one, position to fill.

Negotiations between party–appointed arbitrators at the Tribunal usually consisted of meetings where a very limited number of names were proposed by each side. The meeting would then adjourn for study of the proposed names. Several difficulties arose. First, it was simply not possible, and equally not always appropriate, to ascertain beforehand whether the proposed individuals would be able or willing to serve. This is most likely far more of a concern, however, for an institution such as the Tribunal where the time commitment required is great. More importantly, the party–appointed arbitrators, in contact on this issue with Agents of the Governments that appointed them, were reluctant to propose all of the individuals in whom they were most interested out of the concern that one of the Governments would later exclude that individual from consideration by the Appointing Authority. This tendency was most present when a Party suspected that the other was not seriously negotiating. Thus it is not only the lack of good faith but even the perception of lack of good faith that can cripple such negotiations.

The Tribunal's experience indicates that the 30–day period for agreement by the arbitrators on a presiding arbitrator is sufficient. Negotiations for the initial selection of presiding arbitrators began on 18 May 1981 and were concluded on 4 June 1981. Moreover, when negotiations appear productive, it is quite easy to extend the 30–day period simply by refraining from requesting the appointing authority for assistance. This was the case with the appointments of Judges Briner and Virally and Judges Broms and Arangio–Ruiz.34

C  Extracts from the Practice of Ad Hoc Tribunals

  1. 34.  After having initiated the arbitration proceedings, the Claimant appointed Judge Stephen M. Schwebel, Washington, and the (p. 182) Respondent JUDr. Jaroslav Hándl, Prague, as party–appointed arbitrators. Both arbitrators appointed Dr. Wolfgang Kühn, Düsseldorf, as Chairman of the Arbitral Tribunal on July 19, 2000, which appointment was accepted by the Chairman on July 21, 2000. On September 19, 2000, Dr. Hándl resigned as arbitrator (after the Tribunal rendered a Partial Award on September 13, 2001 (PA), which Dr. Hándl refused to sign). On October 18, 2001 the Respondent appointed Mr. Ian Brownlie C.B.E., Q.C. as arbitrator.

CME Czech Republic BV (The Netherlands) and The Czech Republic, Final Award (Ad Hoc UNCITRAL Proceeding, 14 Mar 2003), reprinted in (2003) 15(4) WTAM 83, 99.

5  Appointment by the Appointing Authority–Article 8

A  Text of the UNCITRAL Rule35

Article 8 of the UNCITRAL Rules provides:

  1. 1.  When an appointing authority is requested to appoint an arbitrator pursuant to article 6 or article 7, the party which makes the request shall send to the appointing authority a copy of the notice of arbitration, a copy of the contract out of or in relation to which the dispute has arisen and a copy of the arbitration agreement if it is not contained in the contract. The appointing authority may require from either party such information as it deems necessary to fulfil its function.

  2. 2.  Where the names of one or more persons are proposed for appointment as arbitrators, their full names, addresses and nationalities shall be indicated, together with a description of their qualifications.

B  Commentary

Article 8 was not discussed in depth during the drafting of the UNCITRAL Rules. It is intended to ensure that appointments by the appointing authority are successful, an objective which in the opinion of the drafters required that the appointing authority have sufficient information to (p. 183) complete his or her tasks. Thus, as the representative of Mexico stated in regards to Article 8(1): “The important point was that the appointing authority should know what the dispute involved; accordingly, the claimant should enclose a summary of the dispute in the application and, possibly, a copy of the arbitration agreement.”36 Given the extensive discussion of the drafters over whether arbitrators appointed by the appointing authority need be of a nationality other than the nationalities of the parties, Article 8(2) was thought to be useful in that it facilitated the appointment of well–qualified arbitrators.37 There is no suggestion in the record of the drafting that the requirement in Article 8(1) that the requesting party send to the appointing authority “a copy of the arbitration agreement” in any way implied that the appointing authority should inquire into the basis of the arbitration.38(p. 184)

Footnotes:

1  The characteristics to be sought in an arbitrator, other than by contradistinction from the limits set by challenge, are not addressed by the UNCITRAL Rules. These are more properly a question for the parties in light of the nature of the dispute. Whether that absence is satisfactory when the UNCITRAL Rules are utilized in proceedings with a higher degree of public interest in the outcome, such as NAFTA Chapter Eleven arbitrations, is an open question.

2  In the case of the Iran-US Claims Tribunal, the State Parties had previously agreed on the number of arbitrators. Article III(1) of the Claims Settlement Declaration provides:

The Tribunal shall consist of nine members or such larger multiple of three as Iran and the United States may agree are necessary…claims may be decided by the Full Tribunal or by a panel of three members as the President shall determine.

Given this provision, the Tribunal modified Article 5 to read:

The composition of Chambers, the assignment of cases to various Chambers, the transfer of cases among Chambers and the relinquishment by Chambers of certain cases to the Full Tribunal will be provided for in orders issued by the President pursuant to his powers under Article III, paragraph I of the Claims Settlement Declaration.

The Tribunal's experience with the three–person panel will be examined in due course. There is little doubt, however, that to accelerate the arbitral proceedings the contracting parties would be wise to include their choice as to the number of arbitrators in the arbitration clause. Indeed, the Model Arbitration Clause recommended by UNCITRAL provides that the “Parties may wish to consider adding…(b) The number of arbitrators shall be…(one or three).” See above, Chapter 2, section 2(A).

3  The technical question of how long the parties should be given to agree upon the number of arbitrators after receipt by the respondent of the notice of arbitration was the only other issue discussed at any length. The preliminary draft proposed for this Article allowed only eight days for agreements to be reached. Report of the Secretary–General on the Preliminary Draft Set of Arbitration Rules, UNCITRAL, 8th Session, UN Doc A/CN.9/97 (1974), Reprinted in (1975) VI UNCITRAL Ybk 163, 168 (1975). “The 8–day period is believed sufficient to allow the parties to communicate and reach an agreement as to the desired number of arbitrators.” Ibid. “There was general agreement that the period of eight days…was too short and should be extended.” Report of the UNCITRAL, 8th Session, Summary of Discussion of the Preliminary Draft, UN Doc A/10017, para 41 (1975), Reprinted in (1975) VI UNCITRAL Ybk 24, 29.

4  Ibid, para 39.

5  Summary Record of the 3rd Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.3, at 2, para 5 (1976) (Comment by Mr. Melis, Australia).

6  Ibid, para 3 (Comment by Mr. Mantilla–Molina, Mexico).

7  Report of the UNCITRAL on the Work of its Ninth Session, UN GAOR, 31st Session, Supp No. 17, UN Doc A/31/17, para 127 (1976), Reprinted in (1976) VII UNCITRAL Ybk 66, 68 (Commentary on Draft Article 6).

8  Report of the UNCITRAL, 8th Session, Summary of Discussion of the Preliminary Draft, UN Doc A/10017, para 39 (1975), Reprinted in (1975) VI UNCITRAL Ybk 24, 28. It is certainly true that the customary practice of public international arbitration supports the appointment of three members. See G Raymond, Conflict Resolution and the Structure of the State System–An Analysis of Arbitrative Settlements (1980) 21 (“When the raw data were coded according to the type of arbitrator utilized, only thirty percent of the arbitrations since the Congress of Vienna were seen to have employed individual arbitrators. Furthermore, regardless of the diplomatic period analyzed, tribunals were clearly utilized more than individuals…”).

9  Report of the UNCITRAL, 8th Session, Summary of Discussion of the Preliminary Draft, UN Doc A/10017, para 39 (1975), Reprinted in (1975) VI UNCITRAL Ybk 24, 28.

10  Ibid.

11  But see Report of the UNCITRAL on the Work of its Ninth Session, UN GAOR, 31st Session, Supp No. 17, UN Doc A/31/17, para 29 (1976), Reprinted in (1976) VII UNCITRAL Ybk 66, 68 (“Three representatives expressed their reservation and noted their preference for the constitution of a tribunal composed of one arbitrator in the case of failure of the parties to agree on the arbitrators”).

12  Indeed, the national law of one of the state parties can be so central to the dispute that both parties appoint an arbitrator with knowledge of that particular law. In the NAFTA Chapter Eleven arbitration between Glamis Gold Ltd and the United States, for example, all three members of the arbitral panel were nationals of the United States.

13  See W Craig, W Park & J Paulsson, International Chamber of Commerce Arbitration (1984) §12.02.

14  Ibid. See also G Raymond above, n 8.

15  The Iran-US Claims Tribunal maintained Article 6 unchanged, but added a note providing:

“As used in Articles 6, 7 and 8 of the UNCITRAL Rules, the terms ‘party’ and ‘parties’ refer to one or both of the two Governments, as the case may be.”

16  This is often the case in ad hoc maritime arbitration in London. See C Ambrose & K Maxwell, London Maritime Arbitration 102 (2nd ed 2002).

17  Report of the Secretary–General on the Preliminary Draft Set of Arbitration Rules, UNCITRAL 8th Session, UN Doc A/CN.9/97 (1974), Reprinted in (1975) VI UNCITRAL Ybk 163, 168 (Draft Article 6(1)).

18  Ibid (Commentary on Draft Article 6(1)).

19  Report of the UNCITRAL, 8th Session, Summary of Discussion of the Preliminary Draft, UN Doc A/10017, para 44 (1975), Reprinted in (1975) VI UNCITRAL Ybk 24, 30. It was also noted that “a determination as to the nationality of the parties might cause serious difficulties where one or both of the parties was a firm, corporation or enterprise.” Ibid, para 48. See Article 6(2) for the emergence of this factor in the considerations of the appointing authority.

20  Sapphire International Petroleums and National Iranian Oil Company (Cavin sole arb, 15 Mar 1963), Reprinted in (1968) 35 ILR 136, 167.

21  M Khan, “The Appointment of Arbitrators by the President of the International Court of Justice,” (1975) 14 Comunicazioni e Studi 1021, 1032.

22  Ibid.

23  The list–procedure “shall” be used “unless both parties agree that the list–procedure should not be used or unless the appointing authority determines in its discretion that the use of the list–procedure is not appropriate for the case.”

24  Article 8(2) provides: “Where the names of one or more persons are proposed for appointment as arbitrators, their full names, addresses and nationalities, shall be indicated, together with a description of their qualifications.”

25  Article 6(4).

26  The Iran-US Claims Tribunal maintained Article 7 unchanged, but added a note providing: “As used in Articles 6, 7 and 8 of the UNCITRAL Rules, the terms ‘party’ and ‘parties’ refer to one or both of the two Governments, as the case may be.”

27  For an application of this rule, see CME Czech Republic, Reprinted below, section C.

28  See, e.g. “Interpretation of Peace Treaties,” ICJ Reports (1950) 227.

29  Article 7(2).

30  Article 7(1). For an application of this rule by an ad hoc tribunal, see CME Czech Republic, Reprinted below section C.

31  Article 7(3). Although Article 7(3) is silent on the question, the general approach of these articles makes clear that the appointing authority will not act to appoint the presiding arbitrator unless requested to do so by one of the parties.

32  See NAFTA, Article 1124.

33  For a discussion of the selection process by an American arbitrator on the Tribunal, see G Aldrich, “The Selection of Arbitrators,” in D Caron & J Crook (eds), The Iran-United States Claims Tribunal and the Process of International Claims Resolution (2000).

34  See IALR 10101 (22 Feb 1985).

35  The Iran-US Claims Tribunal maintained Article 8 unchanged, but added a note providing: “As used in Articles 6, 7 and 8 of the UNCITRAL Rules, the terms ‘party’ and ‘parties’ refer to one or both of the two Governments, as the case may be.”

36  Summary Record of the 4th Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.4, at 7, para 51 (1976) (Comment by Mr. Mantilla–Molina, Mexico).

37  See, e.g. Report of UNCITRAL on the work of its Ninth Session, UN GAOR, 31st Session, Supp No. 17, UN Doc A/31/17, para 43 (1976), Reprinted in (1976) VII UNCITRAL Ybk 66, 69.

38  The role of the appointing authority in regard to such issues is discussed above in Chapter 4, section 3(B) on Article 6(2) and below in Chapter 7.