(p. 167) Introduction

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 depends upon the arbitrators chosen. Parties find themselves avidly studying the backgrounds of several dozen possible arbitrators, often to discover that the one desired is not available. Even more frustrating 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 such a panel.

This Part examines the success of such efforts in terms of the UNCITRAL Rules of Arbitral Procedure. The experience of the Iran-US Claims Tribunal is particularly significant for several reasons. This area of arbitral procedure is rarely addressed in the literature. In large part this is a result of the difficulty of ascertaining practice, a problem mitigated in the case of the Tribunal by its specialized reporters which have generated a 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 quite rare. Indeed, the Tribunal's involvement in some ten challenges may double the amount of previously reported practice.

The initial composition 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 warrant a challenge. At every step, the 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 (p. 168) experience of the Iran-US Claims Tribunal, as expanded upon in NAFTA Chapter Eleven and ad hoc arbitrations, the approach of the UNCITRAL Rules to formation of the arbitral panel is evaluated.