How to constitute an arbitral tribunal?
In having recourse to arbitration, the parties can refer their dispute to arbitrators with profiles suited to the dispute
A party wishes to identify adequate arbitrator profiles to ensure efficient resolution of its dispute
The constitution of the arbitral tribunal is a paramount stage in every arbitration proceeding. Parties are free to appoint the arbitrators they choose, taking into account their professional and personal qualities, but also requirements of independence and impartiality.
Our client's challenge
Appointing an arbitrator suited to the issues of the dispute
A construction company is in dispute with a sub-contractor in relation to delays in performing a construction project and technically inadequate performance of its obligations.
It wishes to introduce arbitration proceedings in compliance with the arbitration agreement contained in the contract. This arbitration agreement provides for the application of the UNICTRAL rules, the constitution of an arbitral tribunal composed of three members, the application of English law and a seat in Hong-Kong.
In such a situation with a tribunal of three members, the arbitrators appointed are often chosen by the parties. In that case, each party generally appoints a co-arbitrator and they then attempt to find a commonly agreeable chair.
The claimant wishes to anticipate the phase of constitution of the arbitral tribunal and wants to identify arbitrator profiles that are suited to the dispute, taking into account the nature of the legal and technical issues of the case and the procedural requirements of arbitration.
Assisting our client in identifying appropriate profiles to deal with the dispute
Selecting an arbitrator is a strategic decision, for which we can provide key assistance and experience to our clients.
This choice must first be made with a view to avoid risks of conflicts of interests and within the requirements of independence and impartiality that arbitrators have to abide by. Breaches of these requirements can lead to challenges to arbitrators (see Article 1456 of the French code of civil procedure) or annulment of awards (see Articles 1492, 2° and 1520, 2° of the French code of civil procedure). It is therefore necessary to anticipate these issues to ensure the integrity of the procedure.
In addition to these legal requirements, it is important to take into account the availability of arbitrator candidates in order to ensure an efficient management of the arbitration.
Finally, the profiles of the arbitrators must be suited to the characteristics of the dispute, through precise and tailored research and screening, notably by reviewing academic writings and past decisions. For legal aspects, profiles that are experienced with the substantive law or the procedural law of the arbitration should be identified. For technical aspects, it is also important to select arbitrators that are familiar with the sector in dispute. Finally, knowledge of the language of the merits or of the substantive law by the arbitrators should be taken into account.