Parties that agree to arbitrate a dispute are able to appoint an arbitrator themselves. Contrast this with the position of litigants in court proceedings who have no say over which judge hears their case. The arbitrator appointment process should never be undertaken lightly because removing an arbitrator you are dissatisfied with is no easy task. Here we look at what you should consider when deciding who to appoint to arbitrate your dispute. We’ll also examine some of the ways an arbitrator can be removed from his or her position with reference both to legislation and to rules and guidance on the issue given by the London Court of International Arbitration (the LCIA) – the arbitral institution under which many of Nath Solicitors arbitration cases are run.
One reason why businesses and individuals engage in arbitration is the inherent flexibility of the process. Parties to a dispute can choose to create their own ‘ad hoc’ arbitration procedures or follow the rules of an arbitral body like the LCIA.
The key decision for the parties to make at the outset is to choose an arbitrator or a panel of arbitrators to form an arbitration tribunal. Great care should be taken when reaching a decision about arbitrator(s) because, depending in how the arbitration agreement is framed, it may prove difficult once proceedings start to object to the arbitrator or remove an arbitrator you have issues with.
It’s not uncommon for parties to extensively research a proposed arbitrator’s experience and past decisions, and on occasion to hold in persons interviews with potential arbitrators prior to appointment to establish their suitability for the role.
If the arbitration is being run by the LCIA or other body, then the relevant institution will have specific rules about how the arbitrator is appointed. The LCIA for example will:
Arbitrator(s) must be able to reach an impartial decision based solely on the evidence presented by the parties involved in the arbitral dispute. It follows therefore that arbitrators:
From looking at past cases it’s fair to say that removal of a validly appointed arbitrator is a rare event. It’s one reason why great care should be taken when drafting an arbitration agreement and appointing an arbitrator. If a party does wish to remove an arbitrator it may do so under s 24 of The Arbitration Act, 1996. Grounds for such an application include lack of impartiality on the part of the arbitrator and a failure to efficiently conduct eth arbitration.
Halliburton v Chubb, a 2021 Supreme Court decision shows the difficulty in establishing an arbitrator’s impartiality. There the court found doubts about an arbitrator’s impartiality were not justified. The arbitrator in the case had not disclosed his appointment in multiple arbitral proceedings with overlapping subject matter. The court said that, as a starting point ‘an arbitrator should be trusted to decide the case solely on the evidence or other material adduced in the proceedings in question’.
Before embarking on a full-blown court application to remove an arbitrator we would always advise clients to look at any rules governing removal that are set out in the arbitral institution under whose auspices the arbitration is being held. The court is unlikely to hear any application before any remedy offered by the relevant institution has been sought.
The LCIA rules for example state that the LCIA may revoke any arbitrator’s appointment upon its own initiative, at the written request of all other members of the tribunal or upon a written challenge by any party circumstances exist that give rise to justifiable doubts as to that arbitrator’s impartiality or independence.
Note that arbitrators appointed by the LCIA must complete statements of independence, taking into account, amongst other things, the existence and nature of any past or present relationships with any of the parties or their counsel. Any doubt as to whether a relationship should be disclosed must be resolved in favour of disclosure.
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