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A Guide to the ICDR International Arbitration Rules, 2nd Edition by Gusy, Martin F; Hosking, James M (21st February 2019)

Part II Commentary on the International Expedited Rules, 42 Article E-6—Appointment and Qualifications of the Arbitrator

Martin F Gusy, James M Hosking

From: A Guide to the ICDR International Arbitration Rules (2nd Edition)

Martin F. Gusy, James M. Hosking

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 25 August 2019

Subject(s):
Appointment of arbitrator

(p. 341) 42  Article E-6—Appointment and Qualifications of the Arbitrator

Article E-6

A sole arbitrator shall be appointed as follows. The Administrator shall simultaneously submit to each party an identical list of five proposed arbitrators. The parties may agree to an arbitrator from this list and shall so advise the Administrator. If the parties are unable to agree upon an arbitrator, each party may strike two names from the list and return it to the Administrator within 10 days from the transmittal date of the list to the parties. The parties are not required to exchange selection lists. If the parties fail to agree on any of the arbitrators or if acceptable arbitrators are unable or unavailable to act, or if for any other reason the appointment cannot be made from the submitted lists, the Administrator may make the appointment without the circulation of additional lists. The parties will be given notice by the Administrator of the appointment of the arbitrator, together with any disclosures.

I.  Introduction

42.01  Article E-6 contains provisions for the appointment of a sole arbitrator for arbitrations that fall with the scope of the Expedited Procedures. The provisions of Article E-6 are more streamlined than those contained in the parallel provision in the main ICDR Rules (Article 12),1 requiring a quicker appointment of the arbitrator. Further, the provision for one arbitrator, as opposed to three, furthers the ICDR’s goal of ‘reduc[ing] the time and cost of an arbitration’ falling within the Expedited Procedures.2

42.02  Article E-6 does not address situations where the parties’ agreement conflicts with the provisions contained in the Article, however. The comparable provisions in the main ICDR Rules (Articles 11 and 12) make clear that the parties retain the autonomy to agree on the number of arbitrators and on the method for appointing the arbitrator or arbitrators.3 The (p. 342) provisions of Article E-6, however, use mandatory language, suggesting that the parties’ autonomy to agree to three arbitrators or to procedures other than those contained in Article E-6 for the appointment of their arbitrator will likely be restricted where the Expedited Procedures apply.

II.  Textual commentary

A.  Sole arbitrator

42.03  Article E-6 provides that a ‘sole arbitrator’ shall preside over arbitrations under the ICDR Expedited Procedures. All of the major arbitral institutions with expedited procedures are in agreement that a sole arbitrator—as opposed to a three-member tribunal—is preferred for arbitrations proceeding under such expedited rules.4 The obvious reason is that a sole arbitrator is better situated to ensure the most efficient resolution of the dispute. One arbitrator will most likely be able to reach a decision quicker and have lower fees and expenses than a multi-arbitrator tribunal.5

42.04  While the arbitral institutions agree that a sole arbitrator is preferred for an expedited arbitration, they differ in their approaches to handling situations where expedited procedures apply, but the parties’ arbitration clause calls for three arbitrators to resolve the dispute. Article E-6 of the Expedited Procedures does not expressly address this situation. But the plain language of Article E-6, which uses the mandatory ‘shall’, suggests that a sole arbitrator will be appointed even if the parties have otherwise agreed to a tribunal of three members.

42.05  Other institutions have generally taken one of three approaches in such situations. The first is to allow the arbitration to proceed before three arbitrators but not under the expedited procedures, an approach adopted by the JCAA.6 A second approach is to try to persuade the parties to proceed before a sole arbitrator, but, should those efforts fail, the arbitration will proceed under the expedited procedures before three arbitrators. The rules of HKIAC and the Swiss Chamber contain such provisions.7 The third approach, taken by the ICC and SIAC, is to allow the arbitration to proceed before a sole arbitrator and under the expedited procedures, notwithstanding the parties’ agreement to three arbitrators.8 The ICC Expedited Procedure Rules expressly authorize the institute to order the arbitration to proceed before a sole arbitrator ‘notwithstanding any contrary provision of the arbitration’.9 Both the ICC and SIAC Rules leave the institutions the discretion, however, to order an expedited arbitration to proceed before three arbitrators, if warranted.10

(p. 343) 42.06  Regardless of the approach taken, such situations obviously put the institution’s goal of promoting efficiency into direct tension with the parties’ autonomy in crafting their arbitral procedure. This tension raises potential questions as to the finality of the arbitral award.11 This issue was recently addressed by the Singapore High Court in AQZ v ARA, in which the plaintiff challenged the validity of an arbitral award issued by a sole arbitrator acting under SIAC’s expedited procedures.12 The parties’ arbitration agreement called for a three-member tribunal, but the president of SIAC permitted the arbitration to proceed before a sole arbitrator and under the expedited procedures after considering submissions from the parties.13 The plaintiff argued that the subsequent award should be vacated under Singapore’s International Arbitration Act (adopting the UNCITRAL Model Law) because the arbitration was not in accordance with the parties’ agreement. The Singapore High Court rejected the argument and confirmed the award.14 The court found that, because the parties had incorporated the SIAC Rules into their contract and the version of the rules in place at the time of the arbitration expressly permitted SIAC’s president to order the arbitration to proceed under a sole arbitrator, there had been no violation of the parties’ agreement.15

42.07  Although the language of Article E-6 of the Expedited Procedures differs from SIAC’s expedited arbitration provisions, the decision of the Singapore High Court reflects at least one court’s view that expedited provisions can trump contrary provisions in the parties’ arbitration clause.

B.  Appointment procedure

42.08  As in the main ICDR Rules,16 Article E-6 of the ICDR Expedited Procedures provides that arbitrators shall be appointed using the list method. Article E-6 directs that ‘[t]he Administrator shall simultaneously submit to each party an identical list of five proposed arbitrators’. The parties may either agree to an arbitrator from the list or ‘strike two names from the list and return it to the Administrator within 10 days from the transmittal date of the list to the parties’. Should the ICDR be unable to appoint an arbitrator from the list for some reason, the ICDR is authorized to appoint an arbitrator ‘without the circulation of additional lists’.

42.09  While Article E-6 employs the ICDR’s list method for the appointment of arbitrators, Article E-6’s appointment procedure differs from that in Article 12 in a few notable ways. Article 12(6) does not limit the number of names on the list that the ICDR provides to the parties, nor does it limit the number of names that a party may strike from the list.17 Moreover, (p. 344) parties have fifteen days to return their lists, as opposed to the abbreviated ten days to do so under Article E-6.18

42.10  Perhaps most significantly, however, Article 12(1)–(2) expressly provides that the parties are free to agree to any procedure for the appointment of arbitrators, with or without the assistance of the ICDR.19 Article E-6, on the other hand, does not provide for the parties’ right to appoint an arbitrator by any method other than that contained in Article E-6.

42.11  In fact, the Expedited Procedures are silent on situations where the parties have agreed on a different method for appointing the arbitrator, but the text and purpose suggest that Article E-6 will take priority. First, Article E-6 uses mandatory language, providing that the ICDR ‘shall’ submit the list of proposed arbitrators to the parties. Second, the Preamble to the ICDR Rules describes the appointment process as an ‘[e]xpedited arbitrator appointment process with party input’, suggesting that the ICDR will consider the parties’ views but will not be bound by it.20 Moreover, the abbreviated method and time for appointing the arbitrator under the Expedited Procedures are consistent with the ICDR’s efforts to keep expedited arbitrations as streamlined and efficient as possible, further suggesting that the ICDR will not embrace alternative appointment procedures that could slow down the arbitration.

42.12  Finally, once an arbitrator is appointed, the ICDR will notify the parties of the appointment and any disclosures made by the arbitrator. The Expedited Procedures do not contain stand-alone provisions for the challenge of an arbitrator where a party has ‘justifiable doubts’ about an arbitrator’s independence or impartiality. Where such doubts exist in an expedited arbitration, a party should therefore refer to the provisions of Article 14 in the main ICDR Rules to make such challenge.21

Footnotes:

1  See discussion of Art 12 at paras 42.10–42.11.

2  See Preamble to the 2014 ICDR Rules.

3  See discussion of Arts 11 and 12 at paras 42.10–42.11.

4  JCAA Rules, Rule 75.2; SIAC Rules, Rule 5.2(b); ICC Rules, App VI, Art 2; SCC Expedited Rules, Art 17; ACICA Expedited Rules, Art 8.1; HKIAC Rules, Rule 41.2(a); Swiss Rules, Art 42(2)(a).

5  See L Nowak and N Ghibradze, ‘The ICC Expedited Procedure Rules—Strengthening the Court’s Powers’, Kluwer Arbitration Blog, 13 December 2016 (discussing the efficiency benefits of a sole arbitrator).

6  JCAA Rules, Rule 75.2.

7  See HKIAC Rules, Rule 41.2(b); Swiss Rules, Art 42(2)(c).

8  See ICC Rules, App VI, Art 2.

9  SIAC Rules, Rule 5.2(b); ICC Rules, App VI, Art 2.

10  ICC Rules, App VI, Art 2(1).

11  See L Nowak and N Ghibradze, ‘The ICC Expedited Procedure Rules—Strengthening the Court’s Powers’, Kluwer Arbitration Blog, 13 December 2016 (discussing the tension between efficiency and party autonomy).

12  AQZ v ARA [2015] SGHC 49, Supreme Court of Singapore, High Court, originating Summons No 530 0f 2014 and Summons No 316 of 2014 (13 February 2015).

13  ibid, para 61.

14  ibid, para 137.

15  ibid, paras 132–136.

16  See discussion of Art 12 at paras 42.10–42.11.

17  See discussion of Art 12(6) at para 12.30.

18  ibid.

19  See discussion of Art 12(1)–(2) at para 12.06.

20  ICDR Rules, Preamble, p 7.

21  See discussion of Art 14 at paras 14.13–14.49.